Hernandez v. Subia

The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

ORDER VACATING DEFERRAL OF REPORT AND RECOMMENDATION

This Court entered an "Order Deferring Preparation of Report and Recommendation" on October 30, 2009. (See Docket 17.) As of that date, this case had already been pending for a substantial period of time. This Court presumed a decision in Hayward v. Marshall, a case pending for decision before a limited en banc panel in the U.S. Court of Appeals for the Ninth Circuit, would be forthcoming in a reasonable period of time. 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). Hayward presents issues sufficiently similar to those in this case that it seems likely the en banc decision in Hayward will have significant implications for the resolution of petitioner's case. Hayward was argued and submitted on June 24, 2008, and thus it has been over nineteen (19) months sinceits submission, and almost four (4) months since this Court deferred action in this case. As of the date of this Order, Hayward remains undecided, and this Court has no information as to when an opinion might be forthcoming.

Fairness to the parties requires that this Court move ahead on the merits of this case. The "Order Deferring Preparation of Report and Recommendation" is therefore VACATED.

This Court will file a Report and Recommendation in the very near future. In deciding to vacate the "Order Deferring Preparation of Report and Recommendation," the Court is mindful of the need to balance competing interests, as defined in Lockyer v. Mirant Corp., 398 F.3d 1098, 1110-11 (9th Cir. 2005), and Yong v. INS, 208 F.3d 1116, 1120-21 (9th Cir. 2000), and as applied by Judge Wallace in Nelson v. Sisto, 2009 WL 2579194 (E.D. Cal. 2009). This Order to proceed is based primarily upon two facts. First, the petition in this case was originally filed on May 2, 2007. (See Docket 1.) Petitioner, who remains confined, has waited over thirty-three (33) months for the District Court to address the merits of his petition. Secondly, the filing of a Report and Recommendation by the U.S. Magistrate Judge, while it serves to advance the case toward a ruling, does not constitute a final disposition by the District Court. If Hayward is decided while the Report and Recommendation is pending before the U.S. District Judge, he will be able to take that decision into account in ruling upon this case.

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